Difference between revisions of "Criminal Charges (1:IV)"

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Currently, over 50% of inmates in provincial remand centres consist of individuals detained prior to their trial. Pre-trial detention can last as long as 24 months, inmates are held in crowded conditions, and Indigenous individuals are overrepresented among them. Furthermore, detention can hurt an accused’s ability to provide a full defence and may lead to induced guilty pleas. Therefore, the bail decision can be life-changing to an accused individual. However, because of the temporary nature of bail and the length of time the court process takes, bail decisions are rarely appealed.

In response to these problems, the Supreme Court of Canada modified the test for judicial interim release in ''R v Antic'', 2017 SCC 27 and ''R v Myers'', 2019 SCC 18 [''Myers'']. The court emphasized that the accused should be released at the earliest reasonable opportunity and on the least onerous grounds. The test in ''Myers'' requires a bail plan that reduces the risk of the accused re-offending to a reasonable level. There is no longer any requirement to address the risk completely. Furthermore, the Court in Myers allowed for accused to be released from detention in order to receive treatment for mental health conditions and issues with substance abuse; this may help reduce the rate of re-offence and help defence counsel achieve better sentences for these accused.

In response to these problems, the Supreme Court of Canada modified the test for judicial interim release in ''[https://www.canlii.org/en/ca/scc/doc/2017/2017scc27/2017scc27.html?searchUrlHash=AAAAAQAOciB2IGFudGljIDIwMTcAAAAAAQ&resultIndex=1 R v Antic]'', 2017 SCC 27 and ''[https://www.canlii.org/en/ca/scc/doc/2019/2019scc18/2019scc18.html?searchUrlHash=AAAAAQAOciB2IG15ZXJzIDIwMTkAAAAAAQ&resultIndex=1 R v Myers]'', 2019 SCC 18 [''Myers'']. The court emphasized that the accused should be released at the earliest reasonable opportunity and on the least onerous grounds. The test in ''Myers'' requires a bail plan that reduces the risk of the accused re-offending to a reasonable level. There is no longer any requirement to address the risk completely. Furthermore, the Court in Myers allowed for accused to be released from detention in order to receive treatment for mental health conditions and issues with substance abuse; this may help reduce the rate of re-offence and help defence counsel achieve better sentences for these accused.

Bill C-75, An Act to amend the ''Criminal Code'', the ''Youth Criminal Justice Act'' and other Acts and to make consequential amendments to other Acts, 42nd Parliament, 2019, cl 210 (received Royal Assent on June 21, 2019, coming into force on December 18, 2019) [Bill C-75] amended the ''Criminal Code'' to add sections 493.1 and 493.2 regarding releasing accused that are in custody. In short, the amendment emphasized the rulings in ''R v Antic'' and ''R v Myers'', stating that peace officers, justices, and judges should place the highest priority on releasing an accused at the earliest possible opportunity and on the least onerous grounds. Furthermore, section 493.2 obligates peace officers, justices, and judges to give particular attention to the circumstances of aboriginal accused and those accused who belong to vulnerable populations that are overrepresented in the criminal justice system and are disadvantaged in obtaining release.

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# whether it is in the public interest to proceed.

More information regarding charge approval is available online at http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf in the Crown Counsel Policy Manual (Policy Code CHA 1).

More information regarding charge approval is available online at [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf] in the Crown Counsel Policy Manual (Policy Code CHA 1).

== C. Appearance requirements ==

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==== d) Striking down an Information ====

Provisions exist for a motion to be made to quash the Information (or a count therein) before the plea, or with leave of the court, afterwards (see ''Criminal Code'', s 601(1)). Although this is almost never done, some situations in which an Information might be struck down are if it does not adequately state the charge, does not include the date of the offence, or contains an unclear description of the circumstances of the alleged offence. To remedy the defect, the court may quash the Information or order an amendment. Amendment powers are considerable, and the Information may be amended at any time during the trial so long as the accused is not prejudiced or misled. The court will generally amend an Information if the defects are in form only. ''R v Stewart'' (1979), 46 CCC (2d) 97 (BCCA) makes it clear that courts tend to focus on substantial wrongs, not mere technicalities. There are generous provisions in the ''Criminal Code'' that allow technical defects in form and style to be disregarded (ss 581(2) and (3), and s 601(3)).

Provisions exist for a motion to be made to quash the Information (or a count therein) before the plea, or with leave of the court, afterwards (see ''Criminal Code'', s 601(1)). Although this is almost never done, some situations in which an Information might be struck down are if it does not adequately state the charge, does not include the date of the offence, or contains an unclear description of the circumstances of the alleged offence. To remedy the defect, the court may quash the Information or order an amendment. Amendment powers are considerable, and the Information may be amended at any time during the trial so long as the accused is not prejudiced or misled. The court will generally amend an Information if the defects are in form only. ''[https://www.canlii.org/en/bc/bcca/doc/1979/1979canlii2989/1979canlii2989.html?searchUrlHash=AAAAAQAXciB2IHN0ZXdhcnQgMTk3OSA0NiBjY2MAAAAAAQ&resultIndex=1 R v Stewart]'' (1979), 46 CCC (2d) 97 (BCCA) makes it clear that courts tend to focus on substantial wrongs, not mere technicalities. There are generous provisions in the ''Criminal Code'' that allow technical defects in form and style to be disregarded (ss 581(2) and (3), and s 601(3)).

{| class="wikitable"

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==== e) Are there any other exclusion rules ====

Consider whether there are other exclusionary rules that could be used to exclude any key pieces of evidence that the Crown needs to prove its case. Generally, if a piece of evidence has more prejudicial effects than probative value, the evidence will be excluded (''R v. Seaboyer'' [1991] 2 SCR 577).

Consider whether there are other exclusionary rules that could be used to exclude any key pieces of evidence that the Crown needs to prove its case. Generally, if a piece of evidence has more prejudicial effects than probative value, the evidence will be excluded (''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii76/1991canlii76.html?searchUrlHash=AAAAAQARciB2IHNlYWJveWVyIDE5OTEAAAAAAQ&resultIndex=1 R v. Seaboyer]'' [1991] 2 SCR 577).

@@ Line 43: / Line 43: @@
 Currently, over 50% of inmates in provincial remand centres consist of individuals detained prior to their trial. Pre-trial detention can last as long as 24 months, inmates are held in crowded conditions, and Indigenous individuals are overrepresented among them. Furthermore, detention can hurt an accused’s ability to provide a full defence and may lead to induced guilty pleas. Therefore, the bail decision can be life-changing to an accused individual. However, because of the temporary nature of bail and the length of time the court process takes, bail decisions are rarely appealed.
-In response to these problems, the Supreme Court of Canada modified the test for judicial interim release in ''R v Antic'', 2017 SCC 27 and ''R v Myers'', 2019 SCC 18 [''Myers'']. The court emphasized that the accused should be released at the earliest reasonable opportunity and on the least onerous grounds. The test in ''Myers'' requires a bail plan that reduces the risk of the accused re-offending to a reasonable level. There is no longer any requirement to address the risk completely. Furthermore, the Court in Myers allowed for accused to be released from detention in order to receive treatment for mental health conditions and issues with substance abuse; this may help reduce the rate of re-offence and help defence counsel achieve better sentences for these accused.
+In response to these problems, the Supreme Court of Canada modified the test for judicial interim release in ''[https://www.canlii.org/en/ca/scc/doc/2017/2017scc27/2017scc27.html?searchUrlHash=AAAAAQAOciB2IGFudGljIDIwMTcAAAAAAQ&resultIndex=1 R v Antic]'', 2017 SCC 27 and ''[https://www.canlii.org/en/ca/scc/doc/2019/2019scc18/2019scc18.html?searchUrlHash=AAAAAQAOciB2IG15ZXJzIDIwMTkAAAAAAQ&resultIndex=1 R v Myers]'', 2019 SCC 18 [''Myers'']. The court emphasized that the accused should be released at the earliest reasonable opportunity and on the least onerous grounds. The test in ''Myers'' requires a bail plan that reduces the risk of the accused re-offending to a reasonable level. There is no longer any requirement to address the risk completely. Furthermore, the Court in Myers allowed for accused to be released from detention in order to receive treatment for mental health conditions and issues with substance abuse; this may help reduce the rate of re-offence and help defence counsel achieve better sentences for these accused.
 Bill C-75, An Act to amend the ''Criminal Code'', the ''Youth Criminal Justice Act'' and other Acts and to make consequential amendments to other Acts, 42nd Parliament, 2019, cl 210 (received Royal Assent on June 21, 2019, coming into force on December 18, 2019) [Bill C-75] amended the ''Criminal Code'' to add sections 493.1 and 493.2 regarding releasing accused that are in custody. In short, the amendment emphasized the rulings in ''R v Antic'' and ''R v Myers'', stating that peace officers, justices, and judges should place the highest priority on releasing an accused at the earliest possible opportunity and on the least onerous grounds. Furthermore, section 493.2 obligates peace officers, justices, and judges to give particular attention to the circumstances of aboriginal accused and those accused who belong to vulnerable populations that are overrepresented in the criminal justice system and are disadvantaged in obtaining release.
@@ Line 71: / Line 71: @@
 # whether it is in the public interest to proceed.
-More information regarding charge approval is available online at http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf in the Crown Counsel Policy Manual (Policy Code CHA 1).
+More information regarding charge approval is available online at [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf] in the Crown Counsel Policy Manual (Policy Code CHA 1).
 == C. Appearance requirements ==
@@ Line 111: / Line 111: @@
 ==== d) Striking down an Information ====
-Provisions exist for a motion to be made to quash the Information (or a count therein) before the plea, or with leave of the court, afterwards (see ''Criminal Code'', s 601(1)). Although this is almost never done, some situations in which an Information might be struck down are if it does not adequately state the charge, does not include the date of the offence, or contains an unclear description of the circumstances of the alleged offence. To remedy the defect, the court may quash the Information or order an amendment. Amendment powers are considerable, and the Information may be amended at any time during the trial so long as the accused is not prejudiced or misled.  The court will generally amend an Information if the defects are in form only. ''R v Stewart'' (1979), 46 CCC (2d) 97 (BCCA) makes it clear that courts tend to focus on substantial wrongs, not mere technicalities. There are generous provisions in the ''Criminal Code'' that allow technical defects in form and style to be disregarded (ss 581(2) and (3), and s 601(3)).
+Provisions exist for a motion to be made to quash the Information (or a count therein) before the plea, or with leave of the court, afterwards (see ''Criminal Code'', s 601(1)). Although this is almost never done, some situations in which an Information might be struck down are if it does not adequately state the charge, does not include the date of the offence, or contains an unclear description of the circumstances of the alleged offence. To remedy the defect, the court may quash the Information or order an amendment. Amendment powers are considerable, and the Information may be amended at any time during the trial so long as the accused is not prejudiced or misled.  The court will generally amend an Information if the defects are in form only. ''[https://www.canlii.org/en/bc/bcca/doc/1979/1979canlii2989/1979canlii2989.html?searchUrlHash=AAAAAQAXciB2IHN0ZXdhcnQgMTk3OSA0NiBjY2MAAAAAAQ&resultIndex=1 R v Stewart]'' (1979), 46 CCC (2d) 97 (BCCA) makes it clear that courts tend to focus on substantial wrongs, not mere technicalities. There are generous provisions in the ''Criminal Code'' that allow technical defects in form and style to be disregarded (ss 581(2) and (3), and s 601(3)).
 {| class="wikitable"
@@ Line 168: / Line 168: @@
 ==== e) Are there any other exclusion rules ====
-Consider whether there are other exclusionary rules that could be used to exclude any key pieces of evidence that the Crown needs to prove its case. Generally, if a piece of evidence has more prejudicial effects than probative value, the evidence will be excluded (''R v. Seaboyer'' [1991] 2 SCR 577).
+Consider whether there are other exclusionary rules that could be used to exclude any key pieces of evidence that the Crown needs to prove its case. Generally, if a piece of evidence has more prejudicial effects than probative value, the evidence will be excluded (''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii76/1991canlii76.html?searchUrlHash=AAAAAQARciB2IHNlYWJveWVyIDE5OTEAAAAAAQ&resultIndex=1 R v. Seaboyer]'' [1991] 2 SCR 577).
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Difference between revisions of "Criminal Charges (1:IV)"

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